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R (Miah) v SSHD (2004) EWHC 2569 (Admin)

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Criminal sentence continues after s47 (notional s37) transfer, and after discharge from section; as does any licence period and power to recall for breach.

Summary

The Claimant was a CJA 1991 short-term prisoner, having been sentenced to 3 years' imprisonment in 2001. He was therefore entitled to be released at the half-way point, and would have remained on licence until the three-quarter point. He was, however, shortly recalled for breach of his licence: he was then entitled to be released at the three-quarter point, and would remain on licence until the sentence expired.

Two days before the three-quarter point he was made subject to a transfer direction under s47. No restriction direction was made under s49 as it would anyway have expired on the early release date in two days' time.

In hospital he was involved in a hostage-taking incident. He was later discharged from section by the MHRT. The incident was taken as a breach of his licence conditions, so he was immediately arrested and returned to prison.

The Claimant argued that the transfer direction had the effect of ending the prison sentence, and that therefore he was not on licence and should not have been recalled for its breach.

Held: The sentence, and accordingly the power to impose licence conditions, continues to run, notwithstanding that there was a transfer to hospital.

(In this case the transferred prisoner was not shown or explained the licence conditions, but no point was taken in these proceedings in relation to that.)

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